Toronto Real Estate Board was not-for-profit corporation whose members acted as real estate agents or brokers, and all of its members were also members of Canadian Real Estate Association. Board offered services to its members, including access to MLS database which contained extensive information about listed properties, but members were restricted to what portions of information they could place on their own websites that were made available to members of public. Commissioner of Competition complained that certain of board’s practices violated s. 79 of Competition Act. Competition tribunal found that MLS rules that prohibited board’s members from posting information to their own websites about sold, withdrawn, expired, suspended or terminated listings and about details of pending sold listings constituted abuse of dominant position under s. 79 of Act. Board appealed. Board brought motion for stay of tribunal’s order pending disposition of appeal. Motion granted. Board met threshold of raising at least one serious issue with respect to possibility that tribunal’s order failed to give adequate consideration to property owners’ privacy rights. There was non-frivolous argument that tribunal did not fully consider all relevant potential impacts of its order on third party privacy interests. Board would suffer irreparable harm if requested stay was not granted because there was real possibility that it would lose control over data order required it to permit its members to post on their websites. Once information was available on internet it could be copied, and there was no way to ensure that all copies would be retrieved by board if they were successful on appeal, which would render appeal nugatory. Balance of convenience favoured stay given potential for interference with third party privacy interests and fact that stay would effectively continue status quo. Appeal should be expedited to minimize detriment to public interest in having violation of Act remedied as soon as possible.
Toronto Real Estate Board v. Canada (Commissioner of Competition) (2016), 2016 CarswellNat 6636, 2016 CarswellNat 6637, 2016 FCA 204, 2016 CAF 204, Mary J.L. Gleason J.A. (F.C.A.).